Tuesday, January 02, 2007, 11:46 PM

Softer View On Rules Violations?

Judge Jackson has been one of the strictest judges on the COA when it comes to rules violations. She's a leader of the group of judges who'll dismiss appeals for rules violations. See, e.g, Jones v. Harrelson and Smith Contractors, LLC (Dec. 19, 2006); Stann v. Levine (Nov. 17, 2006).

In a decision today by Judge Jackson, however, the Court didn't dismiss an appeal despite a clear rule violation. The case is Caldwell v. Branch. The appellants violated Rule 28(b)(6) by not including in their brief a statement of the standard of review with citation to authority. As the Court today observed, in June the Court dismissed an assignment of error in a criminal case because the appellant violated Rule 28(b)(6). On the other hand, in October a different panel in another case didn't dismiss an appeal for noncompliance with Rule 28(b)(6).

Today the Court observed, "It appears to be the trend of this Court to more severely penalize parties for 'substantial,' 'numerous,' or 'multiple' violations of our appellate rules." Accordingly, the Court chose not to dismiss the appeal but instead to sanction the appellants' counsel. The Court ordered the appellants' counsel to pay the printing costs of the appeal because the "single violation was not substantial."

This could be a significant ruling, one which may limit Stann v. Levine (see below) and other dismissal cases on the basis that those cases involved multiple or substantial rules violations. This reasoning, of course, cannot be squared with decisions like Ribble v. Ribble, where the Court in November dismissed an appeal for a single, inconsequential act of purported noncompliance with the rules: the record on appeal omitted the certificate of service for the notice of appeal.

Reminder: The Supreme court will hear oral argument next week in Walsh v. Town of Wrightsville Beach, a rule violation case that's in the Supreme Court based on a dissent by Judge Hunter.

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